Citation Nr: 0308372
Decision Date: 05/02/03 Archive Date: 05/15/03
DOCKET NO. 02-12 920A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for a psychiatric
disability.
2. Entitlement to benefits under 38 U.S.C. § 1151 for
postoperative residuals of bowel resection secondary to
sigmoid diverticulitis with walled off abscess as a result of
treatment at a VA facility in March 1999.
REPRESENTATION
Appellant represented by: Jeffrey J. Bunten, Attorney
ATTORNEY FOR THE BOARD
Michelle S. Miyake, Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to November
1976.
The matter concerning the claim for service connection comes
before the Board of Veterans' Appeals (Board) on appeal from
a March 2002 rating decision by the RO that denied a claim of
entitlement to service connection for a psychiatric
disability.
The matter regarding benefits awarded pursuant to 38 U.S.C.
§ 1151 will be addressed in the remand that follows the
decision below.
FINDING OF FACT
The veteran does not have a psychiatric disability, which is
attributable to military service; and schizophrenia was not
shown within a year of the veteran's separation from service.
CONCLUSION OF LAW
A psychiatric disability was not incurred in or aggravated by
military service, and schizophrenia may not be presumed to
have been incurred in service. 38 U.S.C.A. §§ 1110, 1112,
1113, 1131 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307,
3.309 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. § 3.303 (2002). When disease is shown as
chronic in service, or within a presumptive period so as to
permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date
are service connected unless clearly attributable to
intercurrent causes. 38 U.S.C.A. §§ 1101, 1112 (West 2002);
38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2002) (a psychosis may
be presumed to have been incurred in or aggravated by service
if manifested to a compensable degree within a year of
separation from service). If a reasonable doubt arises
regarding such a determination, it will be resolved in the
veteran's favor. 38 C.F.R. § 3.102 (2002).
The veteran contends that his psychiatric disability had its
onset during service. For the reasons that follow, the Board
finds that service connection for a psychiatric disability is
not warranted.
The veteran's service medical records show that, in March
1973, complaints of nervousness and insomnia were noted. It
was also noted that it was getting worse since his wife left.
The remaining records - including entrance and separation
examination reports - are negative for any reference to
psychiatric problems.
Thereafter, when the veteran applied for VA compensation
benefits in January 1977, he noted problems associated with
the right hand and arm, and hearing loss. There was no
mention of having had a psychiatric problem or treatment for
it. When examined by VA in May 1977, findings were negative
for any complaints, symptoms, or diagnosis of a psychiatric
disability.
VA treatment reports show that, in April 1982, the veteran
was seen with complaints of chronic alcohol abuse. The
diagnosis was acute adjustment reaction with depressed mood.
Medical reports and a December 1994 entitlement decision from
the Social Security Administration (SSA) were associated with
the record in July 2001. These reflect that the veteran was
disabled due to a history of alcohol abuse and a bipolar
disorder. These records include a VA discharge summary
indicating that the veteran was hospitalized from July 1993
to August 1993, and discharge diagnoses included bipolar
disorder, and schizophrenia versus possible organic
hallucinations. A statement from a private mental health
therapist, dated in January 1994, indicates that the veteran
was being evaluated for an affective disorder and was
diagnosed with bipolar disorder. A July 1998 private
evaluation contained a diagnosis of manic bipolar disorder.
Based on a review of the evidence, the record does not show
that the veteran had any psychiatric problems until at least
April 1982, when VA treatment records show that the veteran
was found to have an acute adjustment reaction with depressed
mood. Moreover, it is not until at least July 1993 that the
veteran was found to have bipolar disorder as well as
suspected of having schizophrenia, as evidenced by VA
hospitalization records. The Board notes that these
diagnoses come many years after separation from service. In
this regard, the statutory presumption of 38 C.F.R. § 3.307
does not aid the veteran because no evidence has been
submitted to show that schizophrenia was manifested to a
compensable degree within a year of his separation from
service. 38 C.F.R. §§ 3.307, 3.309 (2002).
In reaching this decision, the Board acknowledges the
isolated complaint of nervousness in March 1973.
Nevertheless, the medical evidence does not again reflect any
similar complaint until many years after service. Moreover,
there is no evidence to show that any complaint in service is
related to any current psychiatric disability. None of the
clinical assessments of record, including private and VA
treatment records include a medical opinion that any
currently diagnosed psychiatric disability is related to the
March 1973 complaint in service or is in any way related to
service. In fact, the only link between service and
psychiatric disability is found in the veteran's own
contentions.
Regarding the veteran's contentions, while he is competent to
provide information concerning the symptoms he currently
experiences and has experienced since his separation from
service, there is no indication that he is competent to
comment upon diagnosis or time of onset of any particular
disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994);
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
In light of the foregoing, it is the Board's conclusion that
the greater weight of evidence is against the claim of
entitlement to service connection for a psychiatric
disability. The absence of any illness shown at separation
from service, one isolated complaint of nervousness in
service, and the many post-service years without a showing of
any psychiatric problems lead to the conclusion that any
psychiatric disability the veteran may currently experience
is not attributable to his military service. As there is not
an approximate balance of positive and negative evidence
regarding the merits of the veteran's claim that would in
turn give rise to a reasonable doubt in favor of the veteran,
the benefit-of-the-doubt rule is not applicable. 38 U.S.C.A.
§ 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990).
Finally, the Board acknowledges the Veterans Claims
Assistance Act of 2000 (VCAA). This law is applicable to all
claims filed on or after the date of enactment of the VCAA.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed.
Cir. 2002) (holding that only section 4 of the VCAA, amending
38 U.S.C. § 5107, was intended to have retroactive effect).
The Board has also considered the final regulations that VA
issued to implement these statutory changes. See Duty to
Assist, 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified as
amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
These regulations, likewise, apply to any claim for benefits
received by VA on or after November 9, 2000, as well as to
any claim filed before that date but not decided by the VA as
of that date, (with exceptions not pertinent here). A
discussion of the pertinent VCAA and regulatory provisions
follows.
The VCAA, among other things, modified VA's duties to notify
and to assist claimants by amending 38 U.S.C.A. § 5103
("Notice to claimants of required information and
evidence") and adding 38 U.S.C.A. § 5103A ("Duty to assist
claimants"). First, the VCAA imposed obligations on the
agency when adjudicating veterans' claims. With respect to
the duty to notify, VA must inform the claimant of
information "that is necessary to substantiate the claim"
for benefits (codified as amended at 38 U.S.C.A. § 5103).
Second, 38 U.S.C.A. § 5103A sets out in detail the agency's
"duty to assist" a claimant in the development of claims
for VA benefits. The new § 5103A provides in part that the
Secretary shall make reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate the
claimant's claim for VA benefits. 38 U.S.C.A. § 5103A(a)(1)
(West 2002).
In this case, VA's duties have been fulfilled. The required
notice must inform the applicant of any information necessary
to complete the application. The purpose of the first notice
is to advise the claimant of any information, or any medical
or lay evidence not previously provided to the Secretary that
is necessary to substantiate the claim. In this case, the
veteran's application is complete. There is no outstanding
information required, such as proof of service, type of
benefit sought, or status of the veteran, to complete the
application.
VA must also provide certain notices when in receipt of a
complete or substantially complete application. 38 U.S.C.A.
§ 5103(a) (West 2002). The amended "duty to notify"
requires the Secretary to notify a claimant of which portion
of the information and evidence, if any, is to be provided by
the claimant and which portion, if any, will be obtained by
the Secretary on behalf of the claimant. 38 U.S.C.A.
§ 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (2001) (to
be codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio
v. Principi, 16 Vet. App. 183 (2002). In those cases where
notice is provided to the claimant, a second notice is to be
provided to advise that if such information or evidence is
not received within one year from the date of such
notification, no benefit may be paid or furnished by reason
of the claimant's application. 38 U.S.C.A. § 5103(b) (West
2002). In addition, 38 C.F.R. § 3.159(b), 66 Fed. Reg.
45,630, details the procedures by which VA will carry out its
duty to provide notice.
In this case, VA informed the veteran of which information
and evidence he was to provide and which information and
evidence VA would attempt to obtain on his behalf. In
reviewing the amended § 5103(a), the Board finds that VA has
complied with the notice requirements contained in § 5103(a).
From the outset, the RO has informed the veteran of the bases
on which it decided the claim and of the elements necessary
to be granted the benefit sought. This is evidenced by the
rating action of March 2002 and statement of the case issued
in January 2003, which informed him of the applicable law and
regulations. The record also reflects that the veteran was
notified by the RO in a June 2001 letter of changes brought
about by the VCAA. The record shows that the RO has notified
the veteran of the evidence necessary to substantiate the
claim, and he was given the opportunity to submit additional
evidence. Specifically, the RO notified the veteran of the
development of his claim, the type of evidence needed to
prove his claim, and of which evidence would be obtained by
the veteran, and which evidence would be retrieved by VA.
38 U.S.C.A. § 5103(a) (West 2002). These documents also show
that VA has provided the veteran with a recitation of the
pertinent statutes and regulations, and discussion of the
application of each to the evidence. In summary, the Board
finds that no additional notice is required under the
provisions of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b).
The Board also notes that the VCAA's duty-to-assist provision
under 38 U.S.C.A. § 5103A has been fulfilled. The VCAA sets
forth several duties for VA in those cases where there is
outstanding evidence to be obtained and reviewed in
association with a claim for benefits. VA must make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate the claim for the benefit
sought, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620,
45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R.
§ 3.159(c), (d)). In this case, the private and VA records
identified by the veteran were obtained and the veteran has
not indicated that additional records exist that would have
an effect on the Board's analysis.
Finally, the new law and regulations provide that an opinion
or examination be provided where necessary. 66 Fed. Reg.
45,630-32 (Aug. 29, 2001) (codified at 38 C.F.R.
§ 3.159(c)(4)). An examination or opinion is necessary if
the evidence of record: (A) contains competent evidence that
the claimant has a current disability, or persistent or
recurrent symptoms of disability; (B) establishes that the
claimant suffered an event, injury or disease in service; and
(C) indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service or with another service-connected disability, but (D)
does not contain sufficient medical evidence for the
Secretary to make a decision on the claim. Id.
Here, the Board finds that VA is not required to provide the
veteran with a VA examination under the provisions of
38 C.F.R. § 3.159(c)(4). The record shows a single isolated
complaint of "nervousness" in service, which may or may not
imply a psychiatric complaint; a service separation
examination showing no psychiatric abnormalities; and the
passage of many years after service before any psychiatric
diagnosis is entered. Without any competent evidence that
the claimed disability may be associated with a single in-
service complaint of nervousness or otherwise related to
military service, the Board does not consider an examination
or opinion necessary to make a decision in this case.
Given that VA has satisfied its duties to notify and to
assist the veteran in this case, a remand for further action
under the VCAA will serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the appellant); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands that would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the appellant are to be avoided).
Under these circumstances, further development of this claim
and further expending of VA's resources are not warranted.
ORDER
Service connection for a psychiatric disability is denied.
REMAND
The record reflects that, with respect to the 38 U.S.C.
§ 1151 issue, the veteran's representative filed the
veteran's VA Form 9, Appeal to Board of Veterans' Appeals, in
September 2002. The veteran's representative marked the form
to indicate the veteran's desire for a hearing before a
member of the Board at a local VA office. Nevertheless,
there is no evidence in the claims folders to indicate that
the Travel Board hearing request has been scheduled or
withdrawn by the veteran. Since the Board may not proceed
until the veteran is afforded the opportunity for such a
hearing, see 38 U.S.C.A. § 7107(b) (West 2002), the case must
be REMANDED to the RO for the following action:
Arrangements should be made for the
veteran to appear at a personal hearing
at the RO before a traveling Veterans Law
Judge. He and his representative should
be given an opportunity to prepare for
the scheduled hearing.
After giving the veteran an opportunity to appear at a
hearing before a Veterans Law Judge, the RO should return the
claims folder to the Board for further appellate review. No
action is required of the veteran until he receives further
notice. The purpose of this remand is to comply with
governing adjudicative procedures. The appellant has the
right to submit additional evidence and argument on the
matter the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
______________________________________________
MICHAEL E. KILCOYNE
Acting Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile,
please note these important corrections to the advice in the
form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.